State v. Salt

• Decision Date: 17 November 2011
• Docket Number: No. 1 CA-CR 11-0143,1 CA-CR 11-0143
• Parties: STATE OF ARIZONA, Appellee, v. JEREMY JAY SALT, Appellant.
• Court: Arizona Court of Appeals

STATE OF ARIZONA, Appellee,

v.JEREMY JAY SALT, Appellant.

No. 1 CA-CR 11-0143

COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DEPARTMENT A

Dated: November 17, 2011

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED

EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

See Ariz. R. Supreme Court 111(c); ARCAP 28(c);

Ariz. R. Crim. P. 31.24

COCONINO County Superior Court No. CR2010-00546

DECISION ORDER

Presiding Judge Ann A. Scott Timmer, and Judges Patrick Irvine and Daniel A. Barker, have considered this appeal and for the reasons stated below dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

Jeremy Jay Salt was indicted for aggravated assault, a domestic violence offense and class four felony, and disorderly conduct, a class one misdemeanor. He pled guilty to both offenses, and the trial court accepted his pleas.

At sentencing, the trial court found four aggravating circumstances and two mitigating circumstances. After weighing the aggravating and mitigating circumstances, the trial court imposed the maximum aggravated 3.75-year term of imprisonment for aggravated assault, with credit for 204 days' presentenceincarceration. The trial court sentenced Salt to time served for disorderly conduct.

Salt appeals his aggravated sentence and argues the sentence was imposed in an illegal manner and must be vacated. Relying on Arizona Revised Statutes ("A.R.S.") section 13-4033(B) (2010), he contends he has the right to a direct appeal because he "entered a plea of guilty without entering into a plea agreement." Subsection (B) of the statute precludes a direct appeal "from a judgment or sentence that is entered pursuant to a plea agreement." Id.

The State argues it is not the statute that divests this court of jurisdiction, but Salt's express waiver of his right to appeal that does. The State notes Salt knowingly, intelligently, and voluntarily waived his right to a direct appeal, as contemplated by Arizona Rule of Criminal Procedure 17.2(e), and authorized by State v. Wilson, 174 Ariz. 564, 567, 851 P.2d 863, 866 (App. 1993).

Salt replies the State has waived this argument because it did not raise the argument in the trial court. Salt further contends the State is barred by laches from raising the argument because it "sought three continuances for the filing of aresponsive brief before raising the waiver issue even though a motion to dismiss the appeal could have been filed at any time."

Finally, Salt contends the record does not support a knowing and voluntary waiver of the right to appeal his sentence. Citing to the change of plea colloquy below, he concludes "[a]t most, [Salt] knowingly, voluntarily and intelligently waived the right to file an appeal in which he could request that his plea be vacated."

DISCUSSION

As to Salt's waiver and laches arguments, this court examines cases before it to determine if we have jurisdiction, whether or not the issue is raised by the parties. State v. Holland, 153 Ariz. 536, 538, 738 P.2d 1143, 1145 (App. 1987). The record in this matter reflects that Salt knowingly, voluntarily, and intelligently waived his right to a direct appeal. At the change-of-plea hearing, the trial court advised Salt in part:

THE COURT: If you plead guilty, you also give up the right to file a direct appeal. That means that once the Court accepts your plea of guilty, you cannot change your mind or withdraw from this guilty plea unless you file a petition forpost-conviction relief within 90 days of sentencing.

In it you must demonstrate that a terrible injustice would occur under this plea. If the Court denies your petition, you can petition the Court of Appeals for a -- for a review of the Court's decision, but that review may not be granted. Do you understand?

THE DEFENDANT: Yes, I do, Your Honor.

THE COURT: Did you go over this with your attorney?

THE DEFENDANT: Yes.

THE COURT: Do you want to give up your right to file a direct appeal and plead guilty?

THE DEFENDANT: Yes, I do.

We need not decide whether A.R.S. § 13-4033(B), which precludes a direct appeal "from a judgment or sentence that is entered pursuant to a plea agreement," also precludes a direct appeal when a defendant does not plead guilty pursuant to a plea agreement, because as noted the record reflects Salt waived his right to a direct appeal. Constitutional rights, including the right to appeal, see Ariz. Const. art. 2, § 24, may be waived, as long as the waiver is knowing, voluntary, and intelligent. See Wilson, 174 Ariz. at 567, 851 P.2d at 866.

Although Salt is correct that § 13-4033(B) substantively precludes a direct appeal from a judgment or sentence entered pursuant to a plea agreement, limiting such individuals to appellate review under Arizona Rule of Criminal Procedure 32, we nonetheless find that Rules 17.1(e) and 17.2(e), which state that all pleading defendants waive the right to appellate review,¹ do not conflict with the statute. Importantly, the record here shows that Salt not only waived his right to appeal at the change-of-plea hearing, but he also signed a "NOTICE OF RIGHTS OF REVIEW AFTER CONVICTION" indicating he understood he did "not have a...